274 F.3d 606 (1st Cir.

2001)

EDWARD C. FREEMAN, Plaintiff, Appellee,

v.
JO ANNE B. BARNHART, COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION, Defendant, Appellant.
No. 01-1293

United States Court of Appeals For the First Circuit

Heard Oct. 2, 2001
Decided December 27, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MAINE. Hon. George Z. Singal, U.S. District
JudgeJoseph E. Dunn, Assistant Regional Counsel, Social Security
Administration, with whom Jay P. McCloskey, United States Attorney,
James M. Moore, Assistant United States Attorney, and Robert J. Triba,
Regional Chief Counsel, Social Security Administration, were on brief for
appellant.
Daniel W. Emery for appellee.
Before Lynch, Circuit Judge, Coffin, Senior Circuit Judge, and Young,*
District Judge.
LYNCH, Circuit Judge.

This case is one of a pair, both originating from the District of Maine and both
presenting the same question to this court: when a federal court rules that a
Social Security Administrative Law Judge ("ALJ") has erred, under what
circumstances may the court remand the case to the Commissioner with
instructions to pay benefits, rather than remand to the Commissioner for further
proceedings? See Seavey v. Barnhart, No. 01-1202 (1st Cir. 2001). We vacate
the district court's order to pay benefits and, applying the principle articulated
in Seavey, hold that, in this instance, a remand with instructions for further
proceedings was the appropriate remedy.1
I.

In June 1998, Edward Freeman applied for benefits under the Social Security
disability benefits and the Supplemental Security Income programs, claiming
disability due to gastroesophageal reflux disease. Freeman received a hearing
on his claim before a Social Security ALJ on July 15, 1999.

When considering applications, the Social Security Administration employs a

five step process to determine if an individual is disabled within the meaning of
the Social Security Act; all five steps are not applied to every applicant, as the
determination may be concluded at any step along the process. 20 C.F.R.
404.1520, 416.920 (2001). The applicant has the burden of production and
proof at the first four steps of the process. If the applicant has met his or her
burden at the first four steps, the Commissioner then has the burden at Step 5 of
coming forward with evidence of specific jobs in the national economy that the
applicant can still perform. Arocho v. Secretary of Health & Human Servs., 670
F.2d 374, 375 (1st Cir. 1982).

At the ALJ hearing, Freeman presented evidence of his reflux disease and
evidence that he has an anxiety disorder with depressed mood. This sufficed to
meet his burden under the first four steps of the process. At Step 5, the
Commissioner presented the testimony of a vocational expert, who testified that
Freeman had skills from his past work as a plumber and pipe fitter that could be
transferred to other jobs. The expert also testified that someone with Freeman's
age, educational and vocational background, and physical and psychological
limitations could still perform many jobs, and he specifically cited examples.

The ALJ in her decision stated that Freeman was not disabled because he could
still perform certain jobs. Rather than citing any of the jobs that the vocational
expert testified that Freeman could perform, however, the ALJ supported her
determination by citing three jobs mentioned by the expert that would utilize
skills from Freeman's prior work. There was no evidence that Freeman, given
his impairments, could perform these jobs. In fact, it appears that he could not
perform such jobs, as they required working with the public, which the ALJ
had found he was limited in doing due to his anxiety and depression. The ALJ
decision was therefore internally inconsistent and not supported by the
evidence.

After the Social Security Appeals Council declined to review his case, Freeman
petitioned the federal district court. The Commissioner conceded that the ALJ
had erred and moved for a remand for further proceedings. The magistrate
judge recommended that the district court deny the Commissioner's motion
and, instead, remand the case with instructions to pay benefits. Freeman v.
Apfel, No. 00-120-B, 2000 WL 1781830, at *4 (D. Me. Dec. 4, 2000). The

magistrate cited Social Security Ruling 96-9p, 61 Fed. Reg. 34,478 (July 2,
1996), which requires ALJs to cite examples of jobs that an applicant could
perform whenever there is more than a slight impact on the applicant's ability
to perform the full range of sedentary work. Freeman, 2000 WL 1781830, at
*3. The Commissioner disputes the applicability of this ruling.
7

The decision to order payment without further proceedings rested primarily on

the notion that the Commissioner bears the burden of proof at Step 5 and that,
as the magistrate had said in prior recommendations, "the [C]ommissioner is
not entitled to multiple attempts to get things right" at this stage of the process.
Id. The district court adopted the magistrate's opinion, Freeman v. Apfel, No.
00-0120-B-S (D. Me. Dec. 18, 2000), and this appeal followed.
II.

The Commissioner's position is laid out in our decision in Seavey, slip op. at 89. Our review of a district court's judgment on a Social Security appeal is de
novo. Id. at 11-13. The Commissioner met his burden to come forward with
evidence in this case by introducing the testimony of a vocational expert. The
argument here centers on how the ALJ weighed that evidence. We do not know
whether the ALJ had a reason for not citing the unskilled jobs mentioned by
the vocational expert as jobs that Freeman could still perform, or whether
reference to the wrong set of jobs was simply an unintentional mistake. The
ALJ's decision was in error because it was not supported by substantial
evidence, 42 U.S.C. 405(g) (1994) -- specifically, because the vocational
expert's testimony appears to contradict pertinent findings by the ALJ.

However, an order to pay benefits is not appropriate here because, based on the
record, it is not clear that Freeman was entitled to benefits. See Seavey, slip. op.
at 17. If anything, the record tends to show that Freeman was not entitled to
benefits, since the vocational expert testified that there were still many jobs that
someone with his residual functional capacity could perform. Still, the ALJ did
not discuss the pertinent expert testimony or Freeman's challenges to it. A
remand is the proper remedy here because it would allow the Commissioner to
fulfill his role of resolving conflicting evidence, a task which is not ours to
perform. Id. at 15; Walker v. Bowen, 834 F.2d 635, 639-40 (7th Cir. 1987).

10

In its posture before the district court, this case presented a simple issue of the
federal court's authority under sentence four of 42 U.S.C. 405(g) to remand a
case after entering a judgment reversing the Commissioner's decision due to
error. Under those circumstances, the Commissioner may have been able to

correct the error without undertaking additional evidentiary proceedings.

However, in a letter submitted to this court after oral argument pursuant to
Federal Rule of Appellate Procedure 28(j), the Commissioner stated that further
development of the record is necessary for two reasons: to comply with a new
Social Security Ruling clarifying the ALJ's duty to resolve any conflicts
between the vocational expert's testimony and the definitions in the Dictionary
of Occupational Titles published by the Department of Labor; and to consider
new evidence that Freeman was working for some period of time during 1999
and 2000.
11

Given the Commissioner's intent to introduce new evidence upon remand, this
case now also invokes our authority under sentence six of 405(g), which
states that a reviewing court "may at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding." 42
U.S.C. 405(g). Evidence that the applicant was working during the claimed
period of disability is unquestionably relevant, as the first step of the five-step
disability determination process asks whether the applicant is engaged in
substantial gainful work activity. 20 C.F.R. 404.1520, 416.920 (2001). As
the Commissioner has only recently obtained this information and could not
have obtained it earlier, she has satisfied the "good cause" requirement of
sentence six.2 In this case, there is no risk of unfairness to Freeman by allowing
further proceedings.3

12

We note that normally sentence four remands are post-judgment remands (in
that the reviewing court has entered a judgment "affirming, modifying, or
reversing the decision of the Commissioner," 42 U.S.C. 405(g)), and sentence
six remands are pre-judgment remands (entered when the reviewing court has
not ruled on the correctness of the Commissioner's decision, but good cause
exists for remanding for further evidentiary proceedings). Faucher v. Sec'y of
Health & Human Servs., 17 F.3d 171, 175 (6th Cir. 1994). We could order a
remand for further proceedings under either sentence. In order to preserve
Freeman's rights if he is ultimately a prevailing party, we will treat this as a
sentence six remand, under which the district court retains jurisdiction until the
remand proceedings are complete and the Commissioner files modified
findings of facts and a modified decision, 42 U.S.C. 405(g). If Freeman is
then a prevailing party, the court may consider any properly filed application
for fees under the Equal Access to Justice Act. Shalala v. Schaefer, 509 U.S.
292, 299-300 (1993).

13

The order for payment of benefits is vacated and the case is remanded with

13

instructions to remand to the Commissioner for further proceedings not

inconsistent with this opinion.

Notes:
*

Of the District of Massachusetts, sitting by designation.

In the district court proceedings, the defendant named was Kenneth S. Apfel,
then Commissioner of Social Security. Freeman v. Apfel, No. 00-120-B, 2000
WL 1781830 (D. Me. Dec. 4, 2000). By the time this appeal was filed, Larry G.
Massanari had become Acting Commissioner of Social Security and was the
appellant in this case. After oral argument, Jo Anne B. Barnhart succeeded
Acting Commissioner Massanari as the Commissioner of Social Security.
Pursuant to F.R.A.P. 43(c), Commissioner Barnhart is substituted as the
defendant appellant.

Indeed, it was Freeman's responsibility to notify the Commissioner that he was

working while his application was pending. 20 C.F.R. 404.452, 416.704(a)
(4), 416.708(b) (2001).

Moreover, even if the ALJ had granted benefits to Freeman at the original
hearing, the Commissioner would now be entitled to a new hearing on whether
Freeman's benefits should be prospectively or retrospectively terminated or
reduced due to his 1999 and 2000 work activities. 20 C.F.R. ch. III,
404.401a, 404.502, 404.1590, 416.1100 (2001).